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02.24.16

IBM and Other Giant Multinationals Upset That Software Patents Are Increasingly Rejected in the US, Now India

Posted in America, Asia, IBM, Patents at 6:23 am by Dr. Roy Schestowitz

Oh, the poor baby, IBM…

A baby angel

Summary: The rather revealing response from patent aggressors and maximalists to the current international trend, which (with the exception of the EPO in Europe) cracks down on software patents

PUTTING aside the EPO for a moment, much needs to be said about software patents in general. According to these new raves [1, 2], companies continue to disguise software patents as hardware, in this particular case “patents for its groundbreaking WOS Object Storage software.”

“IBM should take the hint and stop lobbying for software patents in Europe and Zealand, not to mention India.”Remember that not only in Europe, New Zealand and India has it become hard (if not impossible) to patent “abstract” software, unless it’s described as tied to some physical hardware (like “storage”). In the US too, much more so after Alice, it has become harder to patent software, and especially to assert a software patent in a US court of law. As the FFII’s President correctly pointed out, however, “ISDS tribunals will be able to interpret the “patents for all fields of technology” of TRIPS in order to grant swpats [software patents] and trump Alice.” We may cover this subject some other day.

Don’t underestimate the tricks of patent lawyers. Their biggest clients are large corporations, often foreign. Many of them depend on software patents for a living. Here is Australian patent lawyer Justin Blows dissecting a US case (Ameritox Ltd v Millennium Health) and saying, “Does this explain software patentability in the US?”

To quote Blows: “People trying to understand the patentability of software, particularly in the US, often go to the US Supreme Court decision Alice. To many this decision is difficult to understand.

“Consequently, it is always interesting to have a Judge comment on what they think Alice is about.”

Now, remember how Manny Schecter (IBM) was pushing India towards software patents? Here he is highlighting “More stats on the rise in 101 #patent application rejections after the Alice decision” (IBM must not be happy about it) and here he is sort of lobbying (shaming tactics) for software patents in India, rather than just recognise that things have changed. It’s rather insulting to Indians.

IBM should take the hint and stop lobbying for software patents in Europe and New Zealand, not to mention India. Dear Indians, please take note of what IBM has been doing in your country (see this Wiki page about software patents in India for background), even after India's latest shoot-down of software patents (there were additional press reports about it, e.g. [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15] on Monday on Tuesday, with Tuesday links in the higher numbered citations).

For the IBM chief, based on his tweet, it’s a case of copy or innovate. Nice false dichotomy he got there. Either you patent software (meaning innovation) or you don’t, meaning you just copy, or rip off. Who is he kidding? Is it now fashionable to use anti-China tactics against Indians?

Going back to the US case, see this article titled “Who Is Alice, And Why Is She Driving Patent Attorneys Mad As Hatters?”

This new article states: “Every so often, the Supreme Court hands down a case that causes a seismic shift in our legal system. Constitutional law professors wax poetic about Marbury v. Madison and McCulloch v. Maryland. News analysts loudly denounce Citizens United: “Corporations aren’t people!” But ask a patent attorney for an example of such a case and you are likely to witness a ten-minute diatribe on the shortcomings of Alice Corp. v. CLS Bank Int’l (2014).”

There are some very interesting statistics there from Juristat (the ones Schecter linked to). As the text explains: “This line represents the percentage of all patent rejections based on section 101. In May 2014, that percentage was only 7%. By August 2014, it nearly doubled to 12%. As of August 2015, section 101 rejections made up 15% of all rejections issued at the USPTO. That’s a massive increase, especially considering that software patents represent only a small portion of applications handled at the USPTO.”

Watch what Alice has been doing to software patents in the US. As it turns out, there is patent arms trade between China and the US right now, as Intel offloads a lot of patents onto Xiaomi. Remember that Intel is a proponent of software patents and has many software patents of its own (we covered this in past years).

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